What is a Foreclosure?

Home » What is a Foreclosure?
What is a Foreclosure?2017-07-13T16:44:18+00:00

Foreclosure is a specific process in which a lender legally tries to recover the balance of a home loan from a borrower who has failed to keep payments current to the lender by simply forcing the transfer of ownership from the asset used as the collateral for the loan. Formerly, the borrower (mortgagee) obtains a termination letter from the lender (mortgagor’s) equitable right of redemption, usually by court order or through operation of law (after following a specific statutory process defined by law). Usually a lender obtains a security alarm interest from a borrower which mortgages or pledges a house to secure money lent to the borrower.

If the borrower fails to make payments and the lender tries to take back the property the courts can grant the borrower the equitable right of redemption (if the borrower repays the debts owed). While this equitable right is out there, there is a cloud on the subject and the lender cannot be sure that they can successfully take the property. Therefore, through the procedure for foreclosure, the lender seeks to be able to foreclose allowing the lender to  assume the property as payment for the mortgage when the the borrower fails to pay.

Other liens can also foreclose the owner’s home for various other debts, such as for delinquent taxes, unpaid contractors’ bills or overdue homeowners’ association dues or assessments.

The foreclosure process applied to residential home loans is a bank or other collateralized creditor selling or repossessing a parcel of real property (immovable home and land) after the owner has failed to adhere to the agreement between the lender along with borrower called a “mortgage” or “deed regarding trust.” Commonly, your violation of the mortgage is often a default in repayment of the promissory note, secured by a mortgage on the property.

When the course of action is complete, the lender can sell the property and keep the proceeds to repay its mortgage and any authorized costs, and it is typically declared that “the lender has foreclosed its mortgage or lien. If the promissory note was made which has a recourse clause then if the sale does not bring enough to pay the existing balance associated with principal and fees the mortgagee can file a claim for a deficiency judgment.

In many states in the United States of America, items included to compute the amount of a deficiency judgment incorporate: the loan principal balance, interest accrued and attorney fees minus the amount the lender is paid on the foreclosure sale.

Types of foreclosures

The mortgage holder usually can initiate foreclosure at a time laid out in the mortgage documents, generally some period of time after a go delinquent condition occurs. Within the United States, Canada and many other nations around the world, several types of foreclosure exist. In the United States, two of these are used by judicial sale and by power of selling.

Judicial Foreclosure

Foreclosure by judicial sale, more commonly generally known as judicial foreclosure, which is obtainable in every state (and required in many), involves the sale in the mortgaged property under the supervision of an court, with the proceeds proceeding first to satisfy the mortgage; then other lien holders; and, finally, the mortgagor/borrower or no proceeds are left. Under judicial foreclosure, the lender initiates foreclosure by simply filing a lawsuit against the debtor. As with all other legal steps, all parties must be notified of the foreclosure, but the notification requirements vary significantly from state to state. A judicial decision is introduced after the exchange of pleadings at the (usually short) hearing in a state or local court. In rather rare instances, foreclosures on houses are filed in federal courts.

Nonjudicial Foreclosure

Foreclosure through power of sale, also known as nonjudicial property foreclosure, is authorized by many states if your power of sale clause is held in the mortgage or if a deed of trust with such a clause was used, as an alternative to an actual mortgage. In California, nearly all so-called home loans are actually deed of trust. This process involves the sale of the property by the mortgage holder without court supervision. This process is generally much faster and cheaper than home foreclosure by judicial sale. Such as judicial sale, the house lender and other liens are respectively first and second clients to the proceeds from the sale.